73/J1' ORIGINAL SEP CAUSE NO THE STATE OF TEXAS VS. IN THE DISTRICT COURT OF BASTROP COUNTY, TEXAS RODNEY REED 21ST JUDICIAL DISTRICT

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1 CAUSE NO. 0 /J' THE STATE OF TEXAS VS. RODNEY REED X X X X X N THE DSTRCT COURT OF BASTROP COUNTY, TEXAS ST JUDCAL DSTRCT 0 REPORTER'S RECORD GULT/NNOCENCE PHASE PRE-TRAL HEARNG APRL 0, VOLUME OF ORGNAL FLED N COURT OF C:PMrNl ~ po=als SEP Troy C. Bennett, Jr., LlerK

2 On ) the 0th day of April,,' t~e above entitled and numbered cause carne on for hearing before said Honorable Court, Harold R. Towslee, Judge Presiding, and the following proceedings were had: Volume of 0 PRE-TRAL HEARNG (PAGES THROUGH )!

3 APPEARANCES: 0 For the State Mr. Charles Penick District Attorney, Bastrop County 0 Pecan Street Bastrop, Texas 0 SBOT #000 () - Mr. Forrest Sanderson Assistant District Attorney 0 Pecan Street Bastrop, Texas 0 SBOT #000 () - Ms. Lisa.Tanner Assistant Attorney General P. O. Box Austin, Texas - SBOT #00 () - For the Defendant Mr. Calvin Garvie Attorney at Law N. Bell St., P. O. Box Bellville, Texas SBOT #000 (0) - Ms. Lydia Clay-Jackson Attorney at Law 00 N. San Jacinto Conroe, Texas 0 SBOT #00 (0) 0-

4 (. i CHRONOLOGCAL NDEX WTNESS APPEARANCES PAGE PRETRAL HEARNG MOTON TO SUPPRESS DAVD BOARD 0 DRECT EXAMNATON BY MS. TANNER VOR DRE EXAMNATON BY GARVE DRECT EXAMNATON CONTNUED BY MS. TANNER VOR DRE EXAMNATON BY GARVE DRECT EXAMNATON CONTNUED BY MS. TANNER CROSS-EXAMNATON BY GARVE REDRECT EXAMNATON BY MS. TANNER THE COURT VEWED THE VDEOTAPE DAVD BOARD (RECALLED) RECROSS EXAMNATON BY GARVE FURTHER REDRECT EXAMNATON BY MS. TANNER FURTHER RECROSS EXAMNATON BY GARVE RULNG ON MOTON TO SUPPRESS 0

5 DEFENSE MOTON N LMNE NO. 0 RULNG 0 STATE'S MOTON N LMNE REGARDNG EXPERT WTNESSES RULNG STATE'S MOTON N LMNE \. 0 STATE'S MOTON REGARDNG PSYCHATRC EVALUATON RULNG COURT ADJOURNED FOR THE DAY 0 COURT REPORTER'S CERTFCATE i

6 0 No. S- S- S- Description Statement Videotape Miranda Card EXHBT NDEX VOLUME PRE-TRAL Mrkd dnt'd Ofrd Admit

7 (Day, Pre-trial Hearing, April 0, ; Cause Number 0, The State of Texas versus Rodney Reed.) f you folks are ready we'll go ahead and get started. f you will give me your announcements and tell me what motions you have for me today. 0 MS. TANNER: The State's ready, Your Honor. We have filed a motion in limine and a second motion in limine regarding witnesses and a motion to have the defendant psychologically examined. GARVE: We have a Motion in Limine, Judge, and a Suppress. Motion to THE COURT: Are you ready on all those? GARVE: Yes. What would be the logical order to take those up? My suggestion would be to do the Motion to Suppress so we can get all the witnesses on their way. GARVE: That's fine, Judge. don't know how the Court is going to

8 . deal with the videotape, if the Court wants to view it or view it now in open Court. THE COURT: How long is it? MS. TANNER: Twenty or thirty minutes. GARVE: have no objection to you viewing it on your own. THE COURT: Do you want me to view that before we hear the witnesses? 0 MS. CLAY-JACKSON: No, we can go ahead. THE COURT: Okay, let's do that, and then we'll take a break, and you can take a break while view the videotape. Do you have any argument? MS. TANNER: No. GARVE: No, Your Honor -- for purposes of this hearing we are addressing the statement of voluntariness. THE COURT: Who is your first witness. MS. TANNER: David Board. -

9 DAVD BOARD, first been duly sworn, follows: DRECT the witness, after having testified upon his oath as EXAMNATON 0 QUESTONS BY MS. TANNER: State your name for the record, please. David Board. And how are you employed? Sergeant with the Bastrop Police Department. How long have you been with the Bastrop Police Department? Since July of '. Eleven or twelve years? Twelve years. And where are you -- a sergeant with the Bastrop Police Department? Sergeant. Patrol or detective? Administrative sergeant. Do you have the opportunity to investigate criminal cases? Yes, ma'am. And were you one of the investigators who worked on the case of the murder of Stacey

10 0 0 Stites? Yes. And you worked on behalf of the Bastrop Police Department on that case? Yes. n conjunction with that investigation, did you have an opportunity to talk to the defendant in this case, Rodney Reed? Yes, ma'am, did. Do you recall what date you talked to him? April th,. or? You might want to check your notes., 'm sorry. And where was it that you conversed with the defendant? n an interview room located here at the sheriff's department. And why was the defendant there? He was brought to the interview room for the purposes of an interview regarding this particular case. Was he in jail at the time? Yes, he was. What kind of charge was he in jail on?

11 He was arrested the previous night for, believe, delivery of a controlled substance. 0 So he had not in any way at that time on April of been charged with anything in conjunction with the Stacey Stites case; is that correct? No, ma'am, don't believe. Okay, he was in jail on a drug charge, right? Yes. believe a warrant was outstanding that morning. When you went and talked to him had that warrant been served on him? No, it had not been served on him. Now did you have an opportunity at the time you talked to him to take a statement from the defendant with regard to the Stacey Stites case? Yes. And was that a written or oral statement? Written statement. And through the course of taking that written statement were there other means to record it? Yes, the entire interview was audio and video recorded. Was there also a one-way mirror so others

12 could observe that taking place? i The interview room is equipped with a one-way mirror but don't think there was anyone observing it. s there another way? Yes, through a television monitor. So everything that was transcribed was videotaped? Yes. 0 Now before you took a written statement from the defendant did you read him his rights? Yes. And by that mean what? advised him of his Miranda rights. Do you have a card that you use? Yes, ma'am do. And do you have that actual card that you used r : in this case with you? Yes. (State's Pretrial Exhibit No. was marked for identification purposes.) (BY MS. TANNER) show you what has been

13 marked as state's Number and ask you what that item is. That's a Miranda rights warning card. Okay. s that the card you used and you read off to the defendant on April th,? Yes, ( ma'am. And on there does it list each of the Miranda rights that you read to him? Yes, it does. 0 And did you make any markings on that card to note that those had, in fact, been read? Yes, by each of the warnings read to him placed a checkmark to the left-hand side of the number. And then on the back of that card behind the warnings is there anything that reflects that those warnings were read and he understood them? Yes, it has my signature, the date and the time and the defendant's signature. And did you actually observe the defendant sign that card? Yes, did. Okay. And on that back right there just above the signature, does it have any other

14 statement? Yes, it has a statement that reads, " have received and understand the warning on the other side of this card." And so that is, in fact, the original card that you used in this case? Yes, it is.,,. 0 MS. TANNER: State would offer State's pretrial exhibit. (States Pretrial Exhibit No. was offered into evidence.) Any objections? Do you want to see it? GARVE: Yes, that's not his signature. THE COURT REPORTER: 'm sorry? What was the objection? We couldn't hear. GARVE: 'm objecting on the basis that we accused's signature. don't believe that's the Do you want to

15 ask the witness some questions? GARVE: Yes. Go ahead. 0 VOR DRE EXAMNATON QUESTONS BY GARVE: You're saying that Mr. Reed signed that in front of you? Yes, sir. At the time that you said that you read him his rights? Yes, sir. GARVE: Nothing further. s that your only objection to it. is admitted, ma'am. GARVE: Yes, sir. t's overruled, (State's Pretrial Exhibit No. was admitted into evidence.)

16 ' [. DRECT EXAMNATON CONTNUED QUESTONS BY MS. TANNER: And you actually observed the defendant make this signature on that card? Yes, sir. And that would also be reflected on the videotape, would it not? Yes, sir. Okay. When you talked to the defendant and 0 you read him his rights, did he indicate to \ you verbally that he understood those rights? Yes, sir. By the way, you -- before April th, you had talked to the defendant in the past, had you not? Yes, ma'am. So you two knew each other and conversed on other occasions? Yes. Okay. At any time during the course of talking to him before you actually took the statement, did he indicate to you in any way that he wanted a lawyer or wanted to talk to a lawyer before he was willing to talk to you? No, sir.

17 Okay. Did he in any way tell you that he just didn't want to talk to yo~? Towards the end of the interview, yes, he did. Was that before or after you took a written statement from him? That was after. Okay. But up until the point when you took the written statement he never at any point 0 said he wanted a to you? lawyer or didn't want to talk No, ma'am. Okay. Through the course of talking to the defendant, did you ever in any way, form threaten him with anything? shape or No. Did you make any attempts in any way to coerce him to talk to you? No. Did you through the course of talking to him promise him anything if he would cooperate with you? No. Did he ever ask you to take a break and you refused to let him take a like that? break or anything

18 No. Okay. And you indicated that you two talked and then he gave you a Yes, ma'am. written statement? 0 Which of the two of you filled out the written statement? Mr. Reed filled out the written statement. You didn't write it for him or anything like that? No, rna' am. Did you actually observe him write the statement himself? Yes, ma'am, did. Did he sign it afterwards? Yes. Did you observe him to sign it afterwards? Yes. And did you provide him an opportunity to read over that statement so if he wanted to change anything he could? Yes, ma'am. MS. TANNER: May approach the witness? (State's Pretrial Exhibit No.,

19 ,.. was marked for identification purposes.) Sure. (BY MS. TANNER) show you what's been marked 0 pretrial exhibit number and ask if you can identify this document? Yes, this is a copy of the written statement that Rodney Reed made on April th of '. Okay. And that is a fair and accurate copy of it? Yes. Does that also on the fact of the statement reflect the Miranda rights that we've discussed already? Yes, it does. Okay. And those would be the same rights that you read to him verbally? Yes. And does it also include on the face of the Yes. statement a waiver of rights? Okay. And what is that waiver, if you could read that for the record?

20 Says: "Piior to and during the making of this statement have and hereby waive the above-explained rights and do make the following voluntary statement to the aforementioned person of my own free will and without any promises or offers of leniency or favors and without compulsion or persuasion by any person or persons whomsoever.". And did he actually inquire of you with regard 0 to that waiver and y'all talked about the waiver? Yes, he did. And did he indicate to you that he understood that waiver? Yes, he did. And then he signed underneath the waiver indicating that he did understand it, correct? That's correct, yes. MS. TANNER: The State would offer pretrial exhibit number. (State's Pretrial Exhibit No. was offered into evidence.)!. GARVE: Judge, have r:

21 an objection to it. would like to question the witness before you rule on it. Go ahead. Do you want to question him now about it? GARVE: Yes. Go ahead. VOR DRE EXAMNATON QUESTONS BY GARVE: Detective Board, you indicated that Mr. Reed was arrested on a delivery charge; is that correct? That's correct, yes. believe it was a delivery, delivery or possession. Without referring back to my notes, yes, he had been previously arrested, believe for a delivery of a controlled substance. At the time of his arrest was he already a suspect in the stites aase? Yes. So the officer whomever arrested him knew it at the time? would assume so. 'm not aware of who arrested, but assume they probably did. And you had the opportunity to question him

22 the next morning? Yes, sir. And when you went in to question him, you knew, of course, that a warrant had already been issued to obtain samples from him? Yes. May make a suggestion? This is voir dire. This should 0 not be your full blown cross-examination. This should just be for the purpose of developing objections to the exhibit, and if you want to, go head along those lines. (BY GARVE) What room were you in, again? t was in a -- don't know if the rooms are marked. t's a room in the investigation division of the sheriff's department, an interview room. How big was the room? Gosh, don't know, it's a fairly small room. i And you and he were the only ones present? Yes. Was there anybody outside the room? Yes, sir. t still sounds as if you're going into your full

23 cross-examination. This is not for the admissibility of this document in the trial, it's just for the purposes of this pretrial hearing. GARVE: Oh, thought she was offering for admissibility. 'm sorry, misunderstood the offer being made. 'll rule on that 0 at the end of this hearing on the Motion to Suppress. But right now she wants to get it before the Court. GARVE: You're offering it for the limited purpose of this hearing? MS. TANNER: 'm offering it to the Court at this point for the Court to ultimately to make a ruling on it, and the Court can't make a ruling until actually put it into evidence. Do you have any objection to that then? GARVE: Not for the limited purposes of this hearing. Number is admitted. Go ahead.

24 (state's Pretrial Exhibit No. was admitted into evidence.) (state's Pretrial Exhibit No. was marked for identification purposes.) 0 DRECT EXAMNATON CONTNUED QUESTONS BY MS. TANNER: And you indicated that the entire interaction between the defendant and yourself was videotaped? A. Yes, rna "am Let me show you States Pretrial Exhibit Number and ask if you can identify that? t's a videotape. t has a date, time, case number, and State versus Capital Murder, Reed copy. And did you actually view that tape earlier this morning? Yes. And is that a fair and accurate rendition of the interaction between the defendant and yourself on April th of?

25 Yes. MS. TANNER: The State would offer State's Pretrial hearing. for purposes of this (State's Pretrial Exhibit No. was offered into evidence.) 0 this hearing, admitted. to the jury, we GARVE: For purposes of have no objection. Seven is (State's Pretrial Exhibit No. was admitted into evidence.) f this ever goes will want the words capital murder omitted on that. MS. TANNER. Sure. understand. THE COURT: Go ahead. For this hearing it's admitted. (BY MS. TANNER) Sgt. Board, throughout the

26 course of the time you were with the defendant, you did indicate that at the end of the time y'all talked he indicated he wanted to talk to a lawyer? Yes. What was that in reference to that he wanted to talk to a lawyer?, i,. That was in reference to samples or voluntarily submitting to blood samples, hair 0 samples and saliva samples. You asked him for a consent to provide those? Yes. Did he ever indicate to you that he wanted to talk to a lawyer with regard to the issue of giving you a case? statement about the Stacey Stites No, ma'am. Okay. Was there anything with regard to the statement that occurred that would indicate to you that the statement was not given freely, voluntarily and intelligently? No. You have talked to the defendant in the past, as you said before? Yes.

27 And based on your knowledge of him as well as your interaction with him here on April th of ', was it apparent to you that he could read and write the English language? Yes. GARVE: Not relevant to this proceeding. t's overruled. (BY MS. TANNER) 'm sorry. You can answer 0 the question. Yes. And did he, in fact, read portions of the statement out loud to you? Yes, ma'am, he did. Okay. And for purposes of identification, do you see the person in the courtroom today that you talked with on April th,? Yes. And can you point him out for us? Yes, he's wearing the red clothing issued by the county jail. MS. TANNER: We ask that the record reflect that the witness identified the defendant. Yes, ma'am.

28 MS. TANNER: And we'll pass the witness. CROSS EXAMNATON 0 QUESTONS BY GARVE: Sir, following up on my questioning here, at the time you said that were you were in the interview room over here; is that correct? Yes. And at that time Mr. Reed was already in custody; is that correct? Yes. How did he get to the interview room? He was brought from the jail portion up to the investigation division, to that interview room. And did you ask him to come up, or did you have the jail arrange to bring him up? We had made arrangements for the jail to bring him up~ SO at that time he was brought up by an officer? Yes. Either a peace officer or corrections officer, yes. SO at the time that he was brought to the

29 room, he was not free to leave, was he? No, sir. He was, in fact, in physical custody? Yes, sir. And also, you indicated that a search warrant had already been issued to obtain samples? Yes, sir. And you knew this at the time that you sat 0 down Yes, to interview him? sir. Did you ever tell him that, that a been issued to obtain samples? warrant had No, sir. Not during the entire interview? No, sir. s there any particular reason why tell him that? you didn't guess because was trying to see if he would voluntarily submit to the taking of those specimens. Doesn't that seem kind of unfair? No, sir. That you know the samples? that you're already going to get Yes, sir.

30 0 But you're inducing him to tell you that he would give you the samples? don't know that induced him. asked him if he would be willing to voluntarily submit to giving the specimens asked for, yes, sir. And you knew at the time that you did this interview, of course, it was being taped?,., ' Yes, sir. Did you tell him that? 0 No, sir. You didn't tell him it was being taped either? No, sir. And though you knew it was being taped, you actually asked him about other offenses, did you not? What other offenses are you referring to? Did you initiate discussion about other offenses on the tape? may have. know there was some discussion about me having spoken to him in the past, but as far as any particular case, did ask him or question him about, don't believe so, no. The tape that has been admitted for the sole purpose of this hearing, did you put the label on there?

31 No, sir, did not. Do you know who made that label? didn't see the person, but believe Detective John Barton did, yes, sir. Did you ever have custody of the tape? No. And you did view that tape in preparation for this hearing today -- Yes, sir and your testimony here today? Yes, sir. Did the accused admit to any offense? No, sir, he did not. And you said that he invoked his right to counsel? Yes, sir, after obtained the written statement, yes, sir. Was that immediately thereafter or was there some more questioning? No, it was sometime after he gave the written statement. At the time that he ~equested counselor thought it might be within his best interest to obtain counsel was when was asking him for consent to give blood, hair and saliva samples.

32 And he asked to speak to a lawyer? Regarding the voluntariness of his giving the samples, yes, sir. At the time he was -- you were interviewing r.. i him for this particular sta~ement, was he still within the confines of the jail? He was obviously still in custody, but, no, he was not in the jail portion of this building., per se. He was in the investigative division 0 of this complex. And the words that. were listed in the statement, were they presented by you or were those all given by the accused? The accused wrote them. believe he was asking me questions at the time he was writing, yes, but the statement was written by him. GARVE: Pass the witness. REDRECT EXAMNATON QUESTONS BY MS. TANNER: Do you know of any legal requirement that of you videotape a conversation between yourself and somebody else that you have to tell that

33 other person? No, Do ma'am. you know of any legal requirement that if there is an outstanding arrest warrant or an outstanding search warrant you have to tell them that before you ask for consent? No, ma'am. Okay. And in the course of talking about other cases he asked you a lot of questions about other cases, did he not? Yes, ma'am. MS. TANNER: No further questions. Follow-up? GARVE: Nothing. May he be excused, or do you want him to corne back? MS. TANNER: would like to have him hang around for just a few minutes if can. (Whereupon the witness was excused from the stand.) Does the State

34 have another witness? MS. TANNER: That all we have. THE COURT: Does the defense have a witness? GARVE: We have no witnesses. THE COURT: Would this be a 0 good place to take a break and let me look at the video? GARVE: Sure. MS. TANNER: believe so. (At this time a taken. ) recess was (Court viewed videotape.) Okay. have seen the entire videotape now, and if you have any argument in regard to this motion, now is the time to make it. GARVE: Judge, would like to recall one of the witnesses. THE COURT: All right. We'll

35 do that. Who? GARVE: The witness. Sir, will you come back up here and have a seat. He's still under oath. DAVD BOARD, the witness, after having 0 been previously sworn, resumed the witness stand and testified upon his oath as follows: RECROSS EXAMNATON QUESTONS BY GARVE: Sgt. Board, do you recall -- obviously you had a chance to be in here and have actually viewed the tape that has been submitted for the limited purposes of this hearing. Do you recall telling the accused what to put in that statement? believe we talked about what he was going to write. He was apparently unclear as to what was asking him, from what he was telling me. had to give him a starting point. had to explain to him what it was that we were

36 looking for and what he was trying to tell us was and had to explain to him that was the information we needed in that statement. i Did you tell him what to put in the statement? He could have put anything in the statement. told him. specifically asked him if that's all he wanted in that statement and if that statement was, in fact, true and correct. He could have continued writing or 0 he could have put what he wanted in there, but apparently he was unclear as to what he was to -put in there. Okay. And so you kind of helped him along? Yes, sir. GARVE: Pass the witness. FURTHER DRECT EXAMNATON QUESTONS BY MS. TANNER: Do you normally have to give people starting points when you ask them what y?u to them about? want to talk Yes, ma'am. When put a blank piece of paper in front of somebody and tell them want something without -- or want them to do

37 something or asking them to do something without explaining to them, to know what to do. they are not going And so it's your general standard procedure to 0 at least give them the topics that you want to address, right? That's correct. And believe on this tape it reflects that on numerous occasions you told him to put whatever you remember? That's right, yes. MS. TANNER: No further questions. THE COURT: Anything else? FURTHER RECROSS EXAMNATON QUESTONS BY GARVE: Did you specifically tell him to put in there that he didn't know the girl? That's what he told me. He told me that he did not know the girl. asked him if he knew the girl, and he told me, "No." And did you tell him to put that in there? Yes, told him that's what wanted in the statement, yes. Did tell him he had to put

38 i ' it in there? No. He could put what he wanted to in there. But you did tell him to put that in there. GARVE: Pass the witness. Anything else? MS. TANNER: No. That will be all, sir. You may step down. 0 (Whereupon the witness was excused from the stand.) other evidence or witnesses? Do you have any Defense. GARVE: No. State? MS. TANNER: No, Your Honor. i. Comments with regard to this motion? GARVE: Judge, my i, argument, again, this is a hearing on the voluntariness of the statement. believe the record would reflect that from the testimony

39 of the officer and also from the tape that Mr. Reed was specifically directed to put. certain things into the statement, that he was still in custody at the time and was not free to leave, was actually brought there by officers and was at that time under arrest on another charge, and that the statement was not voluntary and was obtained in violation of his 0 Constitutional rights. Thank you, sir. Ma'am? MS. TANNER: Your Honor, obviously the fact that defendant is in custody does not make the statement by itself involuntary. The Court simply needs to look at all the circumstances, and the circumstances in this statement indicate that it was voluntary. He never invoked his rights, he indicated he understood his rights, and he, in fact, himself initiated going back over the rights to make them. sure he was clear on The issue of what was in the statement. Obviously, the officer has to give him some sort of a topic and in this situation

40 0 the defendant told him he didn't know the victim and he said, "Well, okay, put that in there." t would be different if he said, "Now put it in there whether it's true or not." reiterated over and over again just put in He there whatever you know, whatever that might be. Therefore, if the Court looks at all the circumstances, the statement is clearly 0 voluntary., Any other comments? GARVE: No, Your Honor. Motion to Suppress. 'll overrule the s there another motion the defense wants me to look at now? GARVE: se«, Judge, we have a Motion in Limine. Let me get it in front of me so can see what you're talking about. motion? Does the State have a copy of that MS. TANNER: Yes, Your Honor. The way would

41 like to handle it is if there are no objections to it from the State, it will automatically be granted. Let me get it in front of me before we start, though. Do you only have one limine motion for the defendant; is that right? GARVE: Yes. Okay. Let me.. find it. The defendant was numbering the 0 motions. Does it have a number on it? s it number, is that ~he one 'm supposed to be looking at? GARVE: Thirteen. Okay. Well, you do have another one then. Character of the complainant, victim impact. Do you want me to look at that one now or save it? MS. CLAY-JACKSON: Save it, Judge, please. GARVE: Why don't we save it until later. look for the other one. Okay. Here it is. look at the one 've got in the file to be, sure 'm ruling on the correct one? Let me will you

42 i. r' GARVE: Yes, that's ' i' it. THE COURT: All right. The motion is number thirteen. t's accused Motion in Limine. Let's handle it this way, if the State has no objection to it, it will automatically be granted. MS. TANNER: have an i objection to a few of the specifics in it, 0 Your Honor. Over all don't have many objections to it. Okay. Let's go down them one at a time. Tell me, please. MS. TANNER: have no objections to number one through five. All right. Six? MS. TANNER: Number six, part of our burden of proof in this case is to prove cause of death. Obviously, therefore, we're going to need to introduce pictures of that nature, and therefore, 'd object to that. And again, this is not a ruling on the admissibility of the evidence, it's just a request for the ".

43 ' attorneys to show the evidence to me before the jury sees it. And in that regard, especially the photographs, think they should be shown to the Court before the jury sees them. MS. TANNER: Well, Your Honor, the problem have, this is overbroad. mean, is it requiring me to show the Court every single picture of the deceased 0 introduce before showing it to the Court. mean -- No, ma'am, the way would suggest that you do it, is after the witness has identified it and before it's flashed to the jury, and after you have offered it, let me see it at the bench before rule on the admissibility of it. There might be an objection as to-- well, a 0 objection, something like that, and in that regard 'll grant number six. MS. TANNER: Okay. would, on number eight Did you have any objection to seven? MS. TANNER: No, Your

44 Honor. Okay. Eight? MS. TANNER: Number eight with regard to the statements of the accused, have know objection to approaching prior to... 0 any statement given to law enforcement. However, object to any statement given to any third person not in law enforcement since the Miranda and voluntariness is not relevant, and, of course, since this Court has made the ruling on the written statement then there's no need to. As far as the written statement and this videotaped statement as well, you may refer to them, and that won't be subject to this request number eight. Are there other statements that you might be aware of that she might possibly try to introduce? GARVE: think just received one, just recently, Judge. MS. TANNER: Statements of law enforcement perhaps. There's one that we provided them with. But the problem have with this is any statements to third parties,

45 to non-law enforcement. need to address, that a The issues that we limine would address, the issues of Miranda and voluntariness are obviously no present if it's a non-law enforcement individual. statement to a Do you want to comment on that? 0 GARVE: Obviously, there are other evidence grounds that would apply in that instance, Judge. Again, it's a Motion in Limine..t doesn't say that they can't do it. All it asks is that it is presented to the Court first. Do you know of some statement to witnesses who are not law enforcement. MS. TANNER: Yes, do, and those have been provided to the defendant. Would it be time consuming for the Court to look at those before the jury hears it? MS. TANNER: Well, that ball is in the defense's park. would think so. would rather take the time to do that. don't want to

46 i :';- have to try this case a second time, and if there are legitimate objections, would like to rule on them before the jury hears it. MS. TANNER: The problem 'm having, Your Honor, is that this motion, sort of in general the areas 'm objecting to are, it almost is asking us to try our entire case to the Court first before we get it to a jury, and think that is going to be inordinately 0 time consuming. That's the general gist of the motion 'm having a problem with. understand there are certain things that need to be taken up outside the presence of the jury, but don't want to get in a situation where we're running back and forth with the Court six times with every witness. Oh, no, would want to do it at the beginning of that witness's testimony. How many witnesses do you think this will affect? Number? MS. TANNER: A couple. A couple. Let me look at those statements and see if there are any valid objections before the jury hears

47 those them. MS. TANNER: Okay. will grant eight. 0 Do you have objections to nine? MS. TANNER: Number would simply like to limit that to any eyidence seized from the defendant as opposed to anyone else. He obviously doesn't have standing to contest any evidence seized from anyone else. Do you want to comment on that or explain that request? GARVE: Judge, at this time don't have a problem with that. Obviously, if it becomes necessary to object to something like that, we objection at that time. would present that Nine is denied. MS. TANNER: And obviously the serological evidence that was obtained from the defendant, that has already been litigated. May we move along to number 0?

48 MS. TANNER: Yes. No problems with number 0. Number, have no objections to most of it. Any opinion offered by psychiatrists, psychologists or other quote expert, have no objections to that. do object with regard to the issue of laywitness. Rule 0 does not ~nclude a voir f" 0 dire provision for laywitnesses and, therefore, it is overbroad with regard to that aspect of it. THE COURT: Do you want to comment on that one, sir? GARVE: J~dge, can we come back to that one? Yes. Normally what would hear is an objection at the time the question is asked in the trial that this witness is not qualified to answer such a question, and it may be necessary for me to test those qualifications at that time or pass the witness on voir dire. GARVE: Let me go ahead and make a response to that. Judge, what was looking for, Rule , where a witness is required to state matters within

49 their personal knowledge, we are entitled to voir dire a witness on their personal knowledge if they begin to make statements to that effect, that are not within their personal knowledge. s this talking about any opinion that they might have? For instance, he was drunk, she was drunk. MS. TANNER: The problem 0 have -- GARVE: Okay. see. 'm sorry. Let me withdraw that. This is not a fact question, this is expertise. GARVE: 'll withdraw that one, as to laywitnesses. THE COURT: Yes, otherwise it's granted as to the other experts. 'm going to make a record. note it's modified on the Number MS. TANNER: have no objection to twelve through fifteen. granted. They are all.j

50 0 i!. 0 MS. TANNER: And the last one is number, that refers to any evidence or reference to any scientific evidence tests or other results of such tests until admissibility has been established. think what they are asking for here, and if 'm wrong, please correct me, but think what they're asking for is a Kelley Hearing on the DNA type evidence and it's been held that a Kelley Hearing is no longer required as to the science. The concern have with regard to number is it's so overbroad that it could, in fact, hinder our ability to even make opening statement. an Do you want to comment on that, sir. GARVE: Judge, all we're asking here, it's pretty obvious that what we are asking here is that we don't make reference to the scientific evidence or the results of those scientific evidence until the admissibility has been established. 'm going to deny and let you save it for objections at trial.!

51 have ruled on all of that motion and 'll sign the order that's attached to it. GARVE: Other than the other motion that we will carry with us forward, Judge, the other motion in limine, 0 think that concludes our motions. Okay. Now the State has a Motion in Limine and also a Motion for Psychiatric Examination. MS. TANNER: We have a State's Motion in Limine and State's Motion in Limine Regarding Expert witnesses as well. will you look at this and make sure 'm looking at the right one? s this it. MS. TANNER: Yes, and there is a second one further back. Okay. Earlier? MS. TANNER: More recent. Do you have a copy of that motion in front of you? MS. CLAY-JACKSON: We do, Judge. THE COURT: Again, we will

52 handle it the same way, if the defendant does not have any objections to those requests, they will be granted, beginning with number one. GARVE: We are going to the other one? i!\ Well, it's a -paragraph motion and about a three- or four-page motion. 0 GARVE: Judge, for purpose of convenience, might we address the Motion in Limine Regarding the Expert Witnesses, first? Certainly. Let me get it in front of me. Okay. ' have it in front of me now. t's styled State's Motion in Limine Regarding Expert witnesses. And again, does the defendant have any objections to it? GARVE: For the record, Judge, think we are both entitled to do that. We don't have any objection to it. Okay. 'll grant that motion. There is an order attached. 'll sign it now.

53 Do you want to refer now and consider the other state's Motion in Limine? Do you have a copy of it? GARVE: Yes, judge. Again, take your time and let me know if you have any objections to any of those requests. Those you do not object to will grant. GARVE: First of all, 0 have a general objection to the Motion in Limine in style, and that is it's extremely. broad in what it asks for. Not to mention refer to interrogation or concerning -- well, et cetera et cetera. t's extremely broad in what it's asking for, in general. THE COURT: My interpretation of that is you need to let the Court consider it before the jury hears it. That's my interpretation of that lead-in paragraph. you agree, ma'am? Do MS. TANNER: Yes, Your Honor. item number one Go ahead. GARVE: With respect to again, first of all, it's

54 ', r r ' extremely broad. The statements that,. defendant made to any witnesses or to law l!. enforcement. And also it restricts our (.. j ' [ ability to rebut statements that the prosecution may suggest that the defendant made. : t may be too,. i l early for to you tell me, but would expect this to come when you present your evidence, i i" 0 if any, and if at that time you produce witnesses who are going to testify about statements made by the defendant, think should hear those first. That's what the State is requesting, right? MS. TANNER: Yes, Your Honor. r THE COURT: t won't take me long. GARVE: That is only as to the presentation of our evidence? don't expect, the State to put on any witnesses saying your client told them anything exonerating him in a statement -- GARVE: The problem is

55 i,. that it unnecessarily restricts the accused's rights to cross-examine the witnesses. don't want to do that at all. MS. TANNER: All 'm asking is if they are going to ask one of our witnesses, well, did the defendant tell you X, Y or Z, they approach the Court first because we would have an objection that it's hearsay 0 and self-serving, which it would be. GARVE: Judge, the problem again is that it unduly burdens our ability to cross-examine witnesses. For example, you could have two people who were in the same location and heard something that the State wants to present, and we have no ability to ask the other person what they heard that may be exculpatory to the defendant. THE COURT: don't think it's going to be burdensome, and think it would be prudent for the Court to grant this. All you have to do is ask the witness, "Did the defendant make a statement to you outside this courtroom?" And if the witness says, "Yes," you approach the bench and you tell me

56 at that time if you want to have a hearing outside the presence of the jury. f either i,.,, of you request it, 'll grant it. Let me grant that limine request number. Does the state have any objection with that procedure? MS. TANNER: That's fine. One is admitted. Let's move on to two, if we may. Number two. : One is granted. Okay. Number two, Mr. 0 Garvie. GARVE: Again, once again, would object to this statement. t's unduly restricting his right to a fair trial. t's extremely broad. Any prior statement by any witness that, of course, includes state witnesses. Do you want to! ', comment on that? certainly don't want to restrict the defendant's cross-examinations. MS. TANNER: Absolutely, Your Honor. have no objection to them impeaching witnesses with any prior statements that they may have made, that being prior inconsistent statements or prior consistent

57 statements for purposes to rebut recent fabricat~on. The problem have is if the witness has given a statement in the past, couldn't bring that statement in and put it on. They would object,' assume, and they would have a valid objection. ask that that same rule apply to them, that they not be 0 allowed to introduce actual statements of witnesses that have been given outside of Court because those are obviously hearsay. am asking that they approach the bench before any intent to just do that. am in no way attempting to hinder their ability to proper impeachment. GARVE: The problem is what don't understand is what counsel is terming "proper impeachment." Again, it sounds as though counsel intends to duly rest~ict our ability to cross-examine witnesses. f you put the label on it proper impeachment, obv~ously that's open objectionable. MS. TANNER: The rules of evidence say what is proper impeachment. You can impeach with a prior inconsistent

58 - statement, you can impeach with a prior consistent statement to rebut a claim of recent fabrication. That's what 'm talking about. have no objection to them doing that. They can do that. The problem have is them just trying to blanket introduce a hearsay statement for substantive evidence. That is not permissible. And if you read 0 this request number carefully, it says unless the statement is proper impeachment. That wouldn't apply to that if it is proper impeachment. MS. TANNER: Right. 'm going to grant number two. Anything that is impeachment evidence is not covered by that paragraph. May we look at number three? MS. TANNER: think three and four pretty much go together. Normally this is done outside the presence of the jury. GARVE: think that's required by law.

59 Three and four are granted. Paragraph five? MS. CLAY-JACKSON: That's okay. That's okay with the defendant? GARVE: Okay. Five is granted. Six? 0 GARVE: think that's within the rules. believe so. Yes, sir, Six is granted. Seven? GARVE: Seven is awfully broad. generalization of the rule. comment on that? t's sort of a Do you want to MS. TANNER: That's precisely what it is, Your Honor. Obviously, there are extremely limited circumstances under which the defendant can do that, and would like to approach beforehand. 'm going to play

60 0 it safe and grant that one. f you intend to! '!, attack her character, let me before the jury does. hear about it Number eight? GARVE: No objection. Eight is granted. Nine? GARVE: That goes without saying. 0 Nine is granted. Ten? GARVE: think that one is kind of broad, Judge. MS. TANNER: Ten and eleven both encompass the rape shield law. 'm going to grant ten and eleven. Again, there may be some way to get that in. All this is doing is asking you to approach the bench first. GARVE: Right. understand. Twelve? GARVE: think the rules provide for that, judge. certainly would like for it to be subject to the rules,

61 obviously. MS. TANNER: Absolutely. And would, too. 'm going to grant twelve. The rules provide that you may elicit that testimony. All the State wants to do is have the Court hear it first. would like to make sure 0 those questions are asked in good faith, etc. So twelve is granted. Thirteen? GARVE: Okay. Thirteen is granted. t would not be appropriate a~ that stage of the trial. Fourteen? MS. CLAY-JACKSON: Fourteen and fifteen, they are fine. Okay. They are both granted. MS. TANNER: Fifteen is a little bit moot. t was a voir dire one. Okay. Sixteen? Was there a polygraph exam. MS. TANNER: Not of this defendant, but of witnesses' there was.

62 Okay. the motion in limine. GARVE: Granted as to sixteen is granted. Seventeen? All right. GARVE: have some concern about seventeen. Obviously, it would apply more to punishment than anything else. 0 Yes. GARVE: 'm concerned about the number of restrictions being placed on our ability to question witnesses. Well, as far as seventeen is concerned, the defensive theory in this case is that your client did not do this, wouldn't think there would be any evidence of any remorse by any witness whatsoever in the guilt/innocence phase of this trial. GARVE: This only refers to punishment, 'm certain..., MS. TANNER: Yeah, certainly can't imagine that at guilt/innocence.

63 At punishment that is a consider. valid issue for the jury to MS. TANNER: The issue of remorse is, and totally agree. However, there are cases that say that has to corne from the defendant, and that's all 'm citing to here. THE COURT: need to see 0 that. MS. TANNER: can get those. Perhaps we can carry this one. carry it. All right. Let's f it's all right with the defendant, 'll carry it along to the punishment hearing if and when that starts. Number eighteen? You don't object to number eighteen, do you? GARVE: No objection, sir. Eighteen is granted. Number nineteen? Let me mention something else that you have been faithful about so far, and that is don't think the jury is supposed to be told the effect of a hung jury; that is, if

64 .. they cannot reach a result. would like to have nineteen, include that in your argument. GARVE: have no objection to that. Nineteen is granted. Twenty? 0 GARVE: f might, Judge, can address twenty-one and come back to twenty? Sure. GARVE: We have no objection to twenty-one. Okay. Twenty-one is granted. Twenty, the last one. GARVE: Okay. Any testimony or evidence that could be recently construed again, the problem is is that it hamstrings the defense's ability. Let me ask the State what they are looking for. MS. TANNER: What 'm looking for in that particular one, Judge, is that was a response to their motion that we

65 heard some time ago with regard to them being permitted to put on witnesses to talk about the affect of the death sentence would have on their family and things like that, and the Court denied that motion based on the case law that that was not an appropriate area for testimony. This motion is simply a io reinforcement of that ruling by the Court. That's all we're seeking. expect the defendant to make a plea to the jury for a certain sentence, if we the trial. get to that stage of MS. TANNER: There is the case law that says that they can't ask the jury for that. As said, this was addressed in their previous motion when they requested to be able to do that, and the Court denied the motion. This is simply sort of the same thing just in my motion. GARVE: think that is kind of a different ma~ter, Judge. f we get to punishment, expect the defendant to request the jury to give him a life sentence instead

66 of the death sentence, and that's -- certainly is predictable. MS. TANNER: Okay. Well, 'll tell you what. 'll withdraw twenty, and think that the motion they have on file will be adequate. Okay. t's withdrawn, then. Does that take care of all the State's limine motions? 0 MS. TANNER: Yes, Your Honor. And there is an order attached and 'll sign it for you. The last motion is in regard to the psychiatric evaluation; is that correct. SANDERSON: That's correct, Your Honor. i Let me get it in front of me before we talk about it, please. Do you have a copy of it? GARVE: Yes, Your Honor. THE COURT: Did you just file that recently?

67 SANDERSON: A couple of days ago, Judge. Okay. have it in front of me now. Would you just briefly tell me what the motion is about? SANDERSON: Yes, Judge, it's pretty self-explanatory. Basically what 0 the current case law says is if the defense is going to sponsor an expert witness, that is an evaluation on the defendant on the question of future dangerousness then the State also gets to evaluate the defendant with its own expert to be able to have evidence for rebuttal purposes, and have attached an excerpt from that case to provide the Court with the law. Do you have any objections to it? GARVE: Judge, have several objections to it. First of all my objection to the motion itself and its corresponding affidavit. The affidavit that is attached to this motion purports from an investigator involved in this case saying that in part the basis of this is that in essence she talked to somebody that talked to an

68 investigator who said. That amounts to double hearsay. As far as the affidavit, there is no basis for this motion. The State is alleging that the defense intends to introduce psychol~gical testimony on future dangerousness. Obviously, the State has no 0 way of knowing what we intend'to do, if we get to that point, and it's certainly not relevant at this point. Additionally, might add, the case that counsel has referred to specifically says in several points that if the defense plans to introduce or introduces evidence on the issue of future dangerousness. As the Court is aware, if we got to punishment, there is two issues, including the mitigation issue, when is separate and a part from the first issue. The State in it's motion argued that we inquired about differ jurors about psychological testimony and we discussed that -- when we were discussing special issues number one and number two. As the Court is, of course, aware, on the questionnaire, there was we specific questions about mental health and responded simply to the questions that were

69 0 posed there because the jurors expressed their feelings about mental health and whether it could be used for or against the accused in each instance. Additional grounds, as far as any reports or anything like that, even if that were being done it would not have been completed at this point, obviously, because we're not in the stage of punishment and we're quite some way away from there, if we ever get there. Additionally, if at some point we were to get to punishment and it became necessary to present an expert on the issue of mitigation, don't think future dangerousness, but if we did, just for the sake of argument, the State in punishment, from what we can tell of their witness list intends to call about fifteen experts. Certainly, if it became necessary to do that, their expert would have the opportunity to examine the accused if the State so ordered. At that time? GARVE: Yes, sir. Wouldn't that delay the trial?

70 0 GARVE: No, sir. f there are quite a few witnesses that the State would be calling at that stage, and obviously we would be calling several witnesses, too. But we need your client present for the trial. can't have him off in a doctor's office at the time the trial's going on. t just appears to me 0 logically that if the State needs that type of evidence for rebuttal, now would be the time to have him examined. GARVE: Well, let me continue if might. Go ahead. GARVE: The other thing is, this motion as presented assumes there will be a conviction. Obviously, neither of us knows that we will get to the punishment stage and we certainly don't know what witnesses we' intend to use for the punishment stage at this time, including any experts. But the case law specifically relates to the issue of future dangerousness. Even in the State's affidavit in their motion they say that the affidavit suggests something about

71 i" mitigation, but there is no evidence at all that would support this type of motion. The little bit that read of this case that is attached to the motion, it appears to indicated that the defendant refused to cooperate with Dr. Coontz. SANDERSON: He did in 0 that case, Judge, and don't know if that would be the issue here or not, but in the event that that is,the case here, then the motion provides a sanction which is not letting the defense expert testify, which is think, reasonable, and the defense can make this entire motion moot right now, Judge, by saying they are not going to call anybody. 'm not going to ask the defendant what they are going to do. SANDERSON: Well, my point is we have to presume on the basis that they are going to in order to be ready, and we're just asking the Court to follow the law. t seems fair to me. Let me see if there are any other